Devito v. Opatich
| Decision Date | 30 May 1995 |
| Citation | 627 N.Y.S.2d 441,215 A.D.2d 714 |
| Parties | Sabrina DEVITO, etc., et al., Respondents, v. J.M. OPATICH, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Wortman, Fumuso, Kelly, DeVerna & Snyder, Hauppauge (Kenneth Mauro, of counsel), for appellants.
Bruce G. Clark, New York City, for respondents.
Before SULLIVAN, J.P., and MILLER, SANTUCCI and ALTMAN, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered July 8, 1993, which, upon a jury verdict, is in favor of the plaintiffs and against them in the principal sum of $1,550,000.
ORDERED that the judgment is modified, on the law and the facts, by deleting the provision thereof which awarded the plaintiff parents $50,000 for loss of their child's services and loss of her society and that cause of action is dismissed; as so modified, the judgment is affirmed, with costs to the infant plaintiff payable by the appellants, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate amended judgment.
Contrary to the defendants' contention, the infant plaintiff adduced sufficient evidence from which the jury could rationally conclude that her condition of cerebral palsy involving the right side of her body was proximately caused by the negligence of the defendant J.M. Opatich (see, Chazon v. Parkway Med. Group, 168 A.D.2d 660, 563 N.Y.S.2d 488; Mortensen v. Memorial Hosp., 105 A.D.2d 151, 483 N.Y.S.2d 264). Moreover, upon our review of the record, we find that the verdict in favor of the infant plaintiff was not against the weight of the credible evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498-499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Moffatt v. Moffatt, 86 A.D.2d 864, 447 N.Y.S.2d 313, affd. 62 N.Y.2d 875, 478 N.Y.S.2d 864, 467 N.E.2d 528). While there was conflicting expert testimony as to the cause of the damage to the infant plaintiff's left cerebral hemisphere, the jury was entitled to give credence to the testimony of the parents respecting their observations at the hospital at the time of delivery and accept the opinion of the plaintiffs' expert witnesses, that the failure to deliver the infant prior to the spontaneous delivery represented a departure from good and accepted medical practice and was a substantial factor in bringing about the infant plaintiff's injury (see, ...
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Matthias v. United States
...155 (1946) (finding no recovery available under New York law for loss of "minor daughter's companionship."); Devito v. Opatich , 215 A.D. 2d 714, 627 N.Y.S.2d 441 (2d Dep't 1995) (reversing damages award because loss of minor daughter's society is not compensable). Furthermore, loss of serv......
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Santoro ex rel. Santoro v. Donnelly
...270, 67 N.E.2d 155 (1946) (reversible error to allow mother to recover for loss of child's companionship); Devito v. Opatich, 215 A.D.2d 714, 715, 627 N.Y.S.2d 441 (2d Dep't 1995) (loss of society of child is not compensable); McCauley v. Carmel Lanes Inc., 178 A.D.2d 835, 837, 577 N.Y.S.2d......
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Charles v. Suvannavejh
...N.E.2d 901 (1969). Plaintiff's loss of her child's society during the child's short life is not compensable. Devito v. Opatich, 215 A.D.2d 714, 715, 627 N.Y.S.2d 441 (2d Dep't 1995). See De Angelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406 (1983); De'Le......
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Turturro v. City of N.Y.
...of services, the award in favor of the infant plaintiff's mother in the amount of $75,000 cannot be sustained (see Devito v. Opatich, 215 A.D.2d 714, 715, 627 N.Y.S.2d 441 ). Nonetheless, given the expert testimony elicited at trial, we decline to disturb the awards for future medical expen......